IN THE MATTER OF THE CLAIM OF RHONDA YOUNG, Claimant, v. DILLARDS DEPARTMENT STORE, Employer, and FIDELITY GUARANTY, Insurer, Respondents.

W.C. No. 4-755-097.Industrial Claim Appeals Office.
December 29, 2009.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated August 19, 2009, that denied temporary total disability TTD benefits. We affirm.

The claimant suffered an admitted work-related injury on March 21, 2008. The respondents stipulated that the claimant was unable to return to her usual job due to the effects of the work injury. The claimant resigned her position on July 9, 2009, but contended at the hearing that she had been constructively discharged. At the hearing it was the respondents’ position that the claimant voluntarily resigned her position and consequently she was responsible for her termination pursuant to the termination statutes. Sections 8-42-105(4), C.R.S. 2009, and 8-42-103(1)(g), C.R.S. 2009. The claimant argued that her decision to resign her employment was objectively reasonable under the circumstances surrounding her resignation, which involved the store manager’s behavior, which she could no longer tolerate.

The ALJ determined that, while the store manager engaged in certain bad management practices, nevertheless his behavior was not so unreasonable, insulting, or offensive that a reasonable person would have no choice but to resign. The ALJ determined that the store manager’s practices did not constitute a constructive discharge of the claimant and that the working conditions were not such that the claimant had to leave the workplace. The ALJ found that the claimant exercised volitional conduct in causing the employment termination on July 9, especially after being asked not to quit. The ALJ concluded that the claimant was responsible for her termination of employment and denied the claim for TTD benefits commencing July 9, 2009. On appeal, the claimant contends that the ALJ abused his discretion and erred as a matter of law in

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refusing to order payment of TTD benefits following the claimant’s separation from employment due to the hostile work environment created by the employer.

Sections 8-42-105(4), C.R.S. 2009, and 8-42-103(1)(g), C.R.S. 2009 (referred to as the termination statutes), contain identical language stating that in cases “where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury.” In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held that the term “responsible” reintroduced into the Workers’ Compensation Act the concept of “fault” applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of “fault” as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context “fault” requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995) opinion after remand 908 P.2d 1185 (Colo. App. 1985). That determination must be based upon an examination of the totality of circumstances. Id. As the ALJ correctly recognized, the burden to show that the claimant was responsible for her discharge is on the respondents Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).

The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995). This standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to accept the ALJ’s resolution of conflicts in the evidence as well as plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, supra. Resolving conflicting inferences which could be drawn from the competing testimony is solely in the ALJ’s discretion. Id. This standard of review is deferential and the scope of our review in this regard is “exceedingly narrow.”Id. Under this standard of review it is also the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ’s determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986).

The claimant argues that application of the termination statutes to the present case would result in a lack of safeguards protecting the claimant from abuse by the employer

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and that it would expand the term “responsible” to include employment terminations without regard to the rude and abusive conduct of the store manager. The claimant also relies upon § 8-73-108(4)(c), C.R.S. 2009, which relates to unemployment benefits, in arguing that her reason for quitting was based upon unsatisfactory working conditions that included the employer’s rude, insolent and offensive behavior not reasonably to be countenanced under the circumstances.

The claimant also contends that the ALJ ignored compelling evidence regarding the store manager’s “excessively abusing and inappropriate behavior.” In our view, the ALJ did not ignore the store manager’s behavior. Rather, as noted below, the ALJ made extensive findings of fact concerning the conduct of the store manager. In this regard, as we read the order, the ALJ appropriately considered whether the manager’s conduct rose to the level necessary to create objectively unsatisfactory working conditions. And, the ALJ is not required to cite or discuss every piece of evidence before crediting evidence to the contrary. Crandall v. Watson-Wilson Transportation System, Inc., 171
Colo. 329, 467 P.2d 48 (1970). Instead, evidence not cited is implicitly rejected as unpersuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000).

In deciding whether the claimant was responsible for her termination, the ALJ considered — and rejected — the claimant’s contention that she was constructively discharged. A constructive discharge occurs when an employer allows an employee’s working conditions to become so difficult that a reasonable person in the employee’s position would feel compelled to resign because of those conditions. See Wilson v. Board of County Comm’rs, 703 P.2d 1257 (Colo. 1985). However, a constructive discharge does not occur unless a reasonable person would consider those working conditions to be intolerable. Wilson v. Board of County Comm’rs, 703 P.2d 1257 (Colo. 1985); See also Davis v. Industrial Claim Appeals Office, 903 P.2d 1243 (Colo. App. 1995). (whether behavior is rude, insolent, or offensive such that it should not reasonably be countenanced is to be determined by an objective standard).

The claimant argues that as a matter of law there is substantial evidence in the record that the store manager’s behavior toward the claimant was chronically “inappropriate.” However, on review the issue is whether the ALJ’s findings of fact are supported by substantial evidence, not whether there is substantial evidence, which, if credited, might support a contrary determination. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Under this standard we are required to defer to the ALJ’s resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).

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Here the ALJ determined that the conduct of the store manager was not so unreasonable, insulting, or offensive that a reasonable person would feel compelled to resign. In reaching this determination, the ALJ entered the following relevant factual findings. The manager and the claimant had a good relationship for a number of years. Tr.(1/29/2009) at 23-38 150. However, the claimant principally relied on the occurrence of three events where she felt the store manager acted inappropriately.

In April 2008, the claimant had restrictions against climbing stairs. Tr.(7/16/ 2009) at 20 26. The manager requested that the claimant provide training to other employees upstairs. Tr.(7/16/ 2009) at 20 Tr.(1/29/2009) at 73-74. The claimant reminded the manager that she could not climb the stairs and the manager offered to carry her up the stairs. Tr.(7/16/ 2009) at 20 Tr.(1/29/2009) 73-74. The claimant felt offended by the offer and declined. Tr.(7/16/ 2009) at 20 Tr.(1/29/2009) at 73-74.

In June 2008, a managers’ meeting was held in anticipation of an upcoming inventory and managers were responsible for drawing maps of their departments. Tr.(1/29/2009) at 53. The claimant had previously referred to herself as “map retarded.” Tr.(1/29/2009) at 54-55 Tr.(7/16/2009) at 31-32. The manager very likely heard this statement and later when the claimant asked him to help her prepare her maps he replied that he would assist her, knowing that she was “map-retarded. Tr.(1/29/2009) at 53. The ALJ found that the manager did not intend to hurt the claimant by this statement and was simply trying to be comical. Tr.(1/29/2009) at 53.

On July 8, 2008, the manager while training an assistant sales manager noticed some incorrect signage, called the claimant over, and stated that the inaccurate signage was a “stupid mistake.” Tr.(1/29/2009) at 55 58. The manager did not specifically say the claimant was “stupid” and the assistant sales manager considered the remark to be directed at her rather than at the claimant. Tr.(1/29/2009) at 58-59 137 140-141. The day after the comments about the sign were made the claimant requested a meeting with the manager and stated that she wanted to complete resignation documents. Tr.(1/29/2009) at 64 . The claimant prepared a resignation effective two weeks later. Tr.(1/29/2009) at 73 80. The store manager and assistant store manager tried to talk the claimant out of resigning but the claimant refused to remain as an employee. Tr.(1/29/2009) at 69-70 168-170. At the conclusion of the meeting, the store manager and the claimant hugged and said goodbye. Tr.(1/29/2009) at 76 170.

The ALJ determined that the claimant voluntarily resigned her position and the factual findings support the conclusion that the store manager was not attempting to cause the claimant to resign her position. Tr.(1/29/2009) at 64 69-70 73 80 168 169. The ALJ noted that the employer had an internal review or arbitration process in place that was available to the claimant, which included claims of wrongful termination

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or constructive discharge, but the claimant did not avail herself for these. Tr.(1/29/2009) at 77-78. Because the claimant gave the customary two weeks notice for the benefit of the employer rather than a resignation that was effective immediately the ALJ drew the inference that the conditions were not so unreasonable that the claimant had to leave the workplace immediately. Tr.(1/29/2009) at 73.

The applicable standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App.). In our view the record contains ample evidence from which the ALJ after resolving conflicts in the evidence and making plausible inferences could make the determination that the claimant was responsible for her termination of employment. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo. App. 2002). As noted, the ALJ’s factual findings are supported by substantial evidence in the record and are therefore binding upon us. Additionally, the ALJ applied the correct legal standard in determining whether the claimant was at fault for the job separation. He correctly stated that the question of the claimant’s “fault” for the job separation depended upon whether she performed some volitional act or otherwise exercised a degree of control over the circumstances of the job separation. It is evident from the ALJ’s order that he rejected the claimant’s position that the working conditions were so unsatisfactory as to deprive her of the opportunity of acting volitionally in the matter of her resignation. It is true that if the working conditions had been so objectively unsatisfactory that a reasonable person would resign, then the claimant would not have been at fault for the job separation. 8-73-108(4)(c), C.R.S. 2009; See Rodco Systems, Inc. v. Industrial Claim Appeals Office, 981 P.2d 699 (Colo. App. 1999). However, it is clear from the ALJ’s order that he considered and rejected this position. Given the ALJ’s factual findings concerning the working conditions at the employer’s, we are unpersuaded to disturb the ALJ’s conclusions in this regard.

IT IS THEREFORE ORDERED that the ALJ’s order dated August 19, 2009 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Curt Kriksciu

____________________________________ Thomas Schrant

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RHONDA YOUNG, PUEBLO, CO, (Claimant).

DILLARDS DEPARTMENT STORE, Attn: BRUCE CLARK, PUEBLO, CO, (Employer).

FIDELITY GUARANTY, Attn: SUZI LIMPPO, C/O: GALLAGHER BASSETT, ENGLEWOOD, CO, (Insurer).

STEVEN U MULLENS, PC, Attn: STEVEN U. MULLENS, ESQ., COLORADO SPRINGS, CO, (For Claimant).

RITSEMA LYON, Attn: ELIOT J WIENER, ESQ., DENVER, CO, (For Respondents).